Rice v. Brakel – 9/12/2013
Arizona Court of Appeals Division Two Holds That When a Patient Gives Informed Consent to a Medical Procedure, the Patient May Not Assert a Claim for Medical Battery Based on the Doctor’s Failure to Disclose Information Unrelated to the Procedure.
Defendant Brakel performed spinal surgery on Plaintiff Rice to relieve pain in his right leg, but caused Rice to suffer increasing pain in his left leg. One of Rice’s doctors later concluded that there was probably operative injury and postoperative scarring. Rice also found, through the Board of Medical Examiners’ website, that Brakel had been dependent on morphine, Dilaudid, and Percocet around the time when he performed surgery on Rice. Rice sued Brakel and his practice group, the Center for Neurosciences (“Center”), for battery, negligence, and breach of contract. After all parties moved for summary judgment, the court granted Brakel’s and the Center’s motions. Rice moved for a new trial, which the court denied, and then timely appealed.
The Arizona Appeals Court affirmed. The Court first held that Rice did not have a claim for medical battery based on Brakel’s failure to divulge his drug dependencies, because “although claims involving lack of consent, i.e., the doctor’s failure to operate within the limits of the patient’s consent may be brought as battery actions,” “true ‘informed consent’ claims, i.e., those involving the doctor’s obligation to provide information, must be brought as negligence actions.” Duncan v. Scottsdale Med. Imaging, Ltd., 205 Ariz. 306, 310 ¶ 13, 70 P.3d 435, 439 (2003). In this case, Rice consented to the surgery after Brakel fully explained the procedure. Thus, Brakel’s failure to disclose his drug dependencies gave rise to liability only under a negligence theory.
The Court rejected Rice’s argument that Brakel’s failure to disclose his dependencies vitiated Rice’s consent under the Restatement (Second) of Torts § 892B(2), explaining that the Arizona Supreme Court had already rejected this argument in Duncan.
The Court also held that the superior court properly dismissed Rice’s the negligent supervision claim because Rice failed to establish that the Center knew of Brakel’s addictions, and in any event, failed to adduce any evidence that his injury was proximately caused by the surgery.
The Court also upheld the dismissal of Rice’s malpractice claims. No disputes of material fact exist as to whether Rice gave informed consent because he failed to adduce evidence that he would have declined treatment had Brakel disclosed his dependencies, and again, failed to prove proximate cause. Likewise, Rice’s claim that Brakel improperly performed the surgery failed because he adduced no evidence establishing that Brakel did not satisfy the standard of care.
Finally, the Court affirmed the dismissal of Rice’s claim that Brakel breached the covenant of good faith and fair dealing, explaining that Rice had waived his arguments as to that claim.
Chief Judge Howard authored the opinion; Judges Vasquez and Miller concurred.